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b C. de Legib. et Constit. lib. iv. Lib.L ff de Pactis.



438 OF SUPREME CIVIL POWERS,

5. (1.) The supreme power is not under the fear of the
laws, but is to love the virtue and order that are there com-
manded. For there is a necessity introduced by public
honesty as well as by fear. And therefore the Greek law-
yers, in their commentaries upon that of the institutions, that
the prince is free from laws, expound it to be meant of penal
laws ; that is, they cannot be punished for prevaricating, or
for not keeping them : and Decianus said the same thing ;
" Non quia iniqua liceant, sed quod non timore poenae sed
amore justitise : " It is no more lawful for princes to do
unjust things, than for their subjects ; but they are invited to
do worthy things, not because they are to fear the punish-
ment of laws, but because they must love justice ; and
there is that necessity for fhem to do so, that there is of
being great and honoured. The laws of honesty, of fame
and reputation, which amongst all good men are the guards
of virtue, must endear it also to kings: so Claudian d to
Theodosius,

Tu licet extremes late dominere per Indos,
Te Medus, te mollis Arabs, te Seres adorent j
Si metuis, si prava cupis, si duceris ira,
Servitii patiere jugum ; tolerabis iniquas
Interius leges. Tune omnia jure teiiebis,
Cum poteris rex esse tui. Proclivior usus
In pejora datur, suadetque licentia luxum,
Illecebrisque effrena favet. Turn vivere caste
Asperius, cum promta Venus. Turn durius irae
Consulitur, cum poena patet. Sed comprime motus :
Nee tibi quid liceat, sed quid fecisse decebit,
Occurrat, mentemque domet respectus honesti.

A king is not to consider the greatness of his power, but of
his duty ; and not reckon upon his impunity, but his reputa-
tion;' and because he does not fear the public rods and
axes, let him respect public honesty : so Accursius affirms :
" Principem, etsi legibus solutus sit, honestatis tamen neces-
sitate omnino teneri oportere ; " and this is the sentence of
Decius and most lawyers. But " Honestas non videtur in-
ferre necessitatem," say the lawyers. This does not make it
simply necessary : but it persuades vehemently, and upon
princes, whose honour is both conscience and interest too, it

d viii. 257. Gesner, vol. i. p. 103.

e Vestri consilii ; vestrae prudentiaj est spectare quid deceat vos, non quantum
liceat. Cic. pro Rabirio.



AND THEIR LAWS IN SPECIAL. 439

differs but little from it. For it makes that they ought to do
what is fit. But in kings it is true what Muscornus* Cyprius
says : " Verbum illud ' debet' non coactionem, sed ration-
alem quandain persuasionem denotare videtur." It is their
duty, and they ought to do it ; and that signifies every thing
but compulsion. However, a prince is only free from one
compulsory which is upon his subjects : but is under many
which touch not them. God g enjoins him a greater duty,
and exacts it with greater severity, and will punish their de-
linquencies more sharply : " Potentes potenter," saith the
Wisdom of Solomon ; " Mighty men shall be mightily tor-
mented ;" and " Tophet is prepared for the king." Kings
have a greater need in their affairs than the small fortunes
of their subjects ; and therefore have need of a greater piety
to secure so great a providence. They have more to lose,
and therefore need a bigger caution to secure it; they have
more at stake to endear obedience : and since a king is but
one person, and is strong only by the obedience of his sub-
jects, and that obedience is secured only by love, and that
love can no way be obtained but by beneficence and justice ;
if he breaks these securities, he may have cause to consider
that of Tacitus,' 1 " princeps unus est civium et senatus con-
sensui impar, that one man against a multitude is no-
thing;" and that the senate and the people are stronger,
and need not fear him alone, but he alone may have cause
to fear all them together;' and that the sins of a prince are
often punished by the sins of the people. He can consider
that he is to govern a multitude, whom nothing can unite
but an almighty power ; that they are as contingent in their
love and hatred, as chance itself; that no fortune in a king
is moderate ; that when it declines, it oftentimes runs to ex-
tremity; that he seldom hears truth, never meets with a
bold and a wise reprover ; that he hath many flatterers, and
but few friends ; that he hath great powers of doing evil, and
temptations and opportunities always ready; that his very
being superior to laws leaves his spirit infinitely unguarded

f Hieron. Muscornus, tract, de Jurisdict. et. Imp.

e Principes qui superiorem non habent, plus puniuntur a Deo; et itaqtie
caveant sibi, ne peccent. Castr. 11. c. deJud.

h Annal. xii. 5. Ruperti, vol. i. p. '_ M .)'2.

1 Vindicta certe maxima in nobis sita est. Cogunt timere? odisse, rursu
possumus; justaodia superant omne vindictae genus. Meurs.



440 OF SUPREME CIVIL POWERS,

and spoiled of one of the greatest securities of virtue ; that
impunity is a state of danger ; that when virtue is left only
under a counsel and cold recommendation, and is not made
necessary by laws, he had need have a great and a mighty
virtue to make it necessary by love and choice ; and that such
perfect virtues are but rarely obtained, and after a long prac-
tice ; that ' fear is the beginning of wisdom ;' and therefore
princes are very much to seek in this particular, because they
have nothing to begin with ; and to choose virtue for love
is not usual with beginners, but is the consummation of the
most perfect ; so that we may well pray, " God help poor
kings," who, if they do virtuously, must needs be infinitely
dear to God, because it is so extremely difficult to be so ; and
nothing can make them so but two conjugations of miracles,
the excellences of the Spirit of God, and the spirit of a
king. So that it is no privilege to kings that they are above
the power of the laws ; it is their objection, and the evil of
their state. Only it is necessary to others that these should
dwell in danger : and as for their obedience to laws, it is not
bound upon them by the same cord that ties the subject, but
by another ; it is not necessary for the same reasons, but it
is by a greater necessity.

6. (2.) But then these supreme compulsories, being wholly
conducted by the hand and providence of God, do plainly
tell us that the supreme power is obliged to all the laws of
God, to the laws of nature and Christianity. A king hath no
power to govern but according to God's laws. For if he
does, though he have no compulsory below, yet above there
are enough, and to God's laws the greatest power on earth
is entirely subordinate.

Voftef ra><rut (stzffi\tuf
(hfTur TI xcu afxvanav, x. T. X.

" The law is the supreme king of all," said Pindar. j The same
is also said by Chrysippus, by Aristotle, and divers others :
and Plato k affirms that destruction is imminent upon that city
where the magistrate governs the law, and not the law the
magistrate ; and again ; "Avopog f^ovas^ia, yjzhvxri xai (3agu-
TO.TI) gwomrjifai, " The prince that rules not by laws, is no-
thing but a grievance to his subjects." But that these great

J Incert. frag. i. Heyne, vol. i. p. 58. ed. Bliss. k 4 de Leg.



AND THEIR LAWS IN SPECIAL. 441

persons mean the laws of God and nature, is explicitly plain
in Plutarch, 1 who having affirmed that the law must rule
the prince, adds by way of explanation, that it be that law,
Oux fv j3if3X<oig !'&/ yeygafi/Atvog, wri de riffi iXo/, dXXd s/^v^/o;
uv eaorw Ao'yoc, aiil ffvvor/tuv xai <xa,ea,<p\j\arruv, x.al fj,i)<)z<7rij7
rqv -^u^v iZiv l^i^ov xqdtpoviag, " Not which is written in
books or tables, but the law of reason that always dwells
within ; that law that always is his guard, and never suffers
the soul to be without a guide," that is the law that is su-
perior to princes. Some little instances of particulars of this
law were decreed by Servius Tullius, king of the Romans ; of
which Tacitus" 1 says, " praecipuus Servius Tullius sanctor le-
gura fuit, queis etiam reges obtemperarent, he made laws
of that nature, that even kings themselves should obey them."
For as

Regum timendorum in proprios greges,

so it is as true

Reges in ipsos imperium est Jo vis ; n

" As the people are subjects of the prince, so is the prince of
God ; they must obey their king, and their king must obey
God :" concerning whose law it was said to Domitian by
Apollonius Tyanaeus, " Hsec mihi dicta sint de legibus,
quas si tibi imperare non putaveris, ipse non imperabis; If
thou dost not think these laws ought to rule over thee, thou
shalt not rule at all."

7. Upon this account a prince may not command his sub-
jects to fight in an unjust cause, according to that saying of
St. Jerome, 1 ' " Cum dominus carnis Domino spiritus adver-
sum imperat, non est obediendum ; We must not obey
the rulers of this world, the lords of our flesh, when they
command any thing contrary to the laws of the God and
Lord of all spirits." The commands of princes must be, as
Tertullian says, " intra limites disciplines, within the
bounds of our religion ;" and therefore the Athenians laughed
at Stratocles for desiring them to make a law, that what-
soever pleased King Demetrius should be the measure of
piety to the gods and of justice amongst men. God's law is
the measure of the prince's power ; not his will the measure

1 Lib. de Regno. m Annal. 3. c. 26. Ruperti, vol. i. p. 150.

n Horat. Od. iii. 1. <> Apud Philoatratum. P In Ephes. vz.



442 OF SUPREME CIVIL POWERS,

of that : and therefore the Jews that were soldiers under
Alexander could by no tortures be compelled to assist in
the building of the temple of Belus in Babylon ; and the
Theban legion under Julian the Apostate refused not to fight
for their prince against the barbarians, and they refused not
to die ; but they refused to be executioners of the martyrs
that died in the cause of Christianity.

8. But this is to be practised, that the prince's just laws
be not neglected upon the arrest of every fancy or foolish
opinion. If it be certain that it is against the law of God,
then we are safe in our disobedience. " Idcirco Romanas
leges contenmiinus, ut jussa Divina servemus," said Sylva-
nus, q the martyr ; " Because we are sure these Roman laws
are against the commandments of God, we easily despise
them." But if we be not sure, but are in doubt whether the
laws be just or no, we are to presume for the laws and against
our own fears. For nothing is at all of advantage due to the
laws if we prefer before them any opinion of our own which
we confess uncertain ; and although we are not to do any
thing of which we doubt, yet in a doubt we are to obey
laws, because there is a doubt on both sides : and as we fear
the thing is unjust, so we have reason to fear the evil of
disobedience, for we are sure that is evil ; and therefore we
are to change the speculative doubt into an active judgment
and a practical resolution, and of two doubts take the surer
part, and that is to obey ; because in such cases the evil, if
there be any, is to be imputed to him that commands, not to
him that obeys, who is not the judge of his prince, but his
servant. " Servus herilis imperil non censor est, sed minis-
ter," said Seneca ; " They that are under authority are to
obey, not to dispute." But of this I have given an account
already in book i. chap. 5, rule 6.

9. (3.) But then concerning the civil laws of his country,
we are to distinguish; for some concern the people only,
and some concern the prince only, and some are common
to both. Those that concern the people are such as require
tribute, and labours, and manners of trade, their habits and
dwelling. In these and all such, the people are obliged and
not the prince : for the duties are either relative and concern
their part only of the relation, or else, by the nature of the

i In Martyrol. Rom.



AND THEIR LAWS IN SPECIAL. 443

things themselves, do point out their duty, and in these things
there is no question. For not the king, but the people are to
pay tribute ; and the king's lands are free, if they be in his
own possession.

10. (4.) But there are some laws which concern the
prince alone, as all acts of grace and ease to the people ;
all that he hath been pleased to promise, the forms and laws
of government, and to whatsoever himself hath consented, by
all those laws he is bound ; because in such cases as these, it is
true what Pliny said to Trajan in his panegyric ; r " In rostris
quoque simili religione ipse te legibus subjecisti : legibus,
Csesar, quas nemo Principi scripsit. Sed tu nihil amplius vis
tibi licere, quam nobis." The prince had not a law imposed
upon him, but he became a law unto himself; and when he
hath bound himself there is the same necessity upon him as
upon his subjects.

11. (5.) Other laws yet do concern both prince and peo-
ple ; such as are all contracts and bargains. " Licet serviant
sedes meae, ei tamen cum quo agitur, non serviunt; quantum
enim ad eum pertinet, liberas aides habeo; 5 Although my
house is bound to serve the public necessity, yet in respect
of him that contracts with me my house is free." So also
it is in the acquisition of new rights, the repetition of the
old, and generally in all those things that are established by
the law of nature, or do concern him personally, and not in
the capacity of a king. Thus saith the law ; ' " In imperfecto
testamento nee imperatoremhaereditatein vindicare posse saepe
constitutum est; The prince cannot be heir, if the testament
of the dead man be illegal." Sometimes and in some places,
it may be, fewer witnesses will serve in the prince's case than
in another man's ; but then it is, because fewer in his case
are required by law ; but still the law is his measure as well
as of his subjects.

12. (6.) The great laws of the kingdom do oblige all
princes, though they be supreme. Such were those which
were called ' the laws of the Medes and Persians ;' whose
princes, although they were the most absolute and supreme,
yet they were inferior to those laws, as appears in the Book
of Daniel. These are by way of eminence called ' leges regni,

1 Cap. bcv. 1. Gierig. p. 203. Lib. iv. Si serv. vind.

1 Lib. hi. c. de Testa. Lib. vi. c. Qui test. fac. po.



444 OF SUPREME CIVIL POWERS,

the kingdom's laws.' Sucli are the golden bull of the
empire : the law Salic and the pragmatical sanction in
France; the Magna Charta and the Petition of Right in Eng-
land ; and in other countries the like, as who please may, par-
ticularly for Spain, see in Mariana." This is confessed by all,
and it relies upon natural justice, the prince having consented
to it ; it is either * sponsio principis,' or ' conditio regnandi ;'
he was admitted either upon that condition or with it.

13. (7.) Whatsoever the prince hath sworn to, to all that
he is obliged, not only as a single person, but as king : for
though he be above the laws, yet he is not above himself nor
above his oath, because he is under God ; and he cannot
dispense with his oath or promise in those circumstances
and cases in which he is bound. And therefore, although
the prince is above the law, that is, in cases extraordinary
and privileged cases, and the matter of penalties ; yet he is
so under all the laws of the kingdom, to which he hath
sworn, that although he cannot be punished by them, yet he
sins if he breaks them. Not that the law does bind him,
for it cannot bind without a compulsory ; and against him
the law hath no such power : but yet he is bound to the law,
though not by it ; the obligation comes not from the law,
but from other causes from his promise, his oath, his con-
tract, his religion, his reputation, his fear, his hopes, his in-
terest, and especially from God himself. For it is carefully
to be observed in this particular, that though a promise gives a
man a right to the thing which is promised, it does not always
give him a right over the person. A king is like him that
promises a thing under a curse; if he fails, the injured per-
son is not to curse him, or to inflict the curse upon him, but
that is to be permitted to God alone. And therefore if a
king swears to his people to make no law without their con-
sent, he is bound to" perform his word ; but if he does not,
God, and not they are to punish the perjury. The king's
promise, or cession, or acts of grace, do never lessen or part
his power, but they tie his person. An act of parliament in
England, if it be made with a clause of perpetuity, that if
an act should be made to rescind it, it should be void, that
first act of itself is invalid. " Clausulae deroganti si dero-
getur, valet ut posterius testamentum, ita posterior constitu-

u Lib. xx.



AND THEIR LAWS IN SPECIAL. 445

tio," say the lawyers. Concerning which Cicero hath written
an excellent epistle to Atticus. v It is as if a man should
make a will to annul all future wills of his own ; it shews
indeed that he had then a mind to have that to be his stand-
ing will : but how if his mind change ? Constantine made
a law, that widows and orphans should not be cited to the
emperor's court for judgment, or compelled to come, though
he himself should command them : but yet if he did com-
mand them, that first rescript stood for nothing. Antiochus
III. commanded the magistrates not to obey him, if he com-
manded any thing against the laws : but if he should com-
mand any such thing, it were not safe for them to urge him-
self against himself. The Roman emperor bade his officer
use his sword against him, if he broke the laws: but this
give him no power over his prince in case he had gone
against the laws ; it is nothing but a confident promise, and
an obligation of dishonour and his conscience of which God
alone is the superior and the guardian.

14. The custom of supreme princes swearing to govern by
laws was very ancient : we find an example of it amongst the
Gothic kings in Cassiodore ; amongst the late Greek em-
perors in Zonaras and Cedrenus. Anastasius w the emperor
sware to observe the decrees of the Council of Chalcedon ;
Adrian the emperor sware that he would never punish a senator
but by the sentence of the senate ; and Trajan, having pro-
mised to rule with justice and clemency, consecrated his head
and right hand to the anger of the gods, if he broke his word :
and PlutaYch tells, that the kings of the Cossari sware to the
Epirots, that they would govern according to the laws. And
indeed, abstracting from the oath and promise, kings are
bound by natural justice and equity to do so : for they are
not kings unless they govern ; and they cannot expect obe-
dience unless they tell the measures by which they will be
obeyed ; and these measures cannot be any thing but laws
which are at first the will of the prince ; and when they are
published to the people, then they are laws, but not till they
be established by rewards and punishments, which are the
portion of the people good and bad. Now this is the natu-
ral way of all good government, there is no other ; and to
govern otherwise is as unnatural as to give children meat at

T iii. 'J-l. w Cassiod. var. lib. x. 16, 17.



446 OF SUPREME CIVIL POWERS,

their ears, and hold looking-glasses at their elbows that they
may see their face. If kings be not bound to govern their
people by their laws, why are they made? by what else can
they be governed? by the will of the prince? The laws
are so; only he hath declared his will, and made it certain
and regular, and such as wise men can walk by, that the
prince may not govern as fools govern, or as a lion does, by
chance, and violence, and unreasonable passions. " Ea quse
placuerunt, servanda," saith the law. x If this had not been
the will of the prince, it had been no law ; but being his will,
let it be stood to : when the reason alters, let his will do so
too, and the law be changed, that the measures of right and
wrong, of obedience and disobedience, may be known.

15. We have seen how kings are bound; the next in-
quiry is, how they are freed, and how they are superior to
laws. Antonius Augustinus says, that by the ' lex regia,'
or the 'jus regium,' kings, that is, the supreme power, are
only freed from some laws : and this he gathers from the
words of the royal law xx written to Vespasian, " Uti quibus
legibus ne Augustus teneretur, iis Vespasianus solutus esset :
quseque ex quaque lege Augustum facere oportuit, ea omnia
Vespasiano facere liceat ; Where Augustus Caesar was
free, Vespasian should be free ; but those things which Au-
gustus ought to do, all those Vespasian might." The word
* liceat' in this case was modestly put in ; not but that ' opor-
tuit' had been the better word to express his obligation, as
well as the duty of Augustus : but it was therefore chosen to
represent that to be expected from him, but could not be ex-
acted ; it was his duty, but no compulsion lay near him : but
certain it was, that the power of the people being devolved
upon him (for it had been a popular government), as the peo-
ple were bound to the laws which themselves have made, so
was the prince. The people were, for there was none else to
keep them : but therefore so was the prince, for he had but
the same power which the people formerly had when they
were supreme. But then that they were tied but to some
laws and not to others, is very true : but so that he was tied
to all those laws which were intended to oblige him directly
and indirectly to all the rest, that is, to govern the people by
their measures only.

* Lib. i. ff. de Pactis. Authent. si quis de Eden.



AND THEIR LAWS IN SPECIAL. 447

16. But now if we inquire from what laws they were freed,
and what is the right of a king or the supreme power more
than of the people : I answer,

(1.) It consists in that which we in England call * the
king's prerogative ;' in the civil law, the ' lex regia,' or * Ves-
pasian's tahles ;' by the Jews pn> the dixaiupa ftaaiXws, ' the
statute or proper appointment of the king :' the particulars
of which are either described in the respective laws of every
people, or are in their customs, or else is a power of doing
every thing that he please that is not against the laws and
customs of his people without giving a reason. ** Cum lege
antiqua, quae regia nuncupatur, orane jus omnisque potestas
populi Romani in imperatoriam translata sunt potestateni,"
saith the law. y Amongst theRomans that was the 'jus regium/
that the prince could do all that ever the people could : now
what that was, we find in Dionysius, by the concession of
Romulus : " Populus magistratus creanto, leges sciscunto,
bella decernunto ; The people might create magistrates,
make laws, and decree peace and war." That is the right of
kings, or the supreme power. 2 Guntherus hath summed
them up from the laws and customs of the empire and some
ancient Italian governments.

Ac primum Ligures, super hoc a rege rogati,
Vectigal prorsus, cudendae jura monetie,
C unique molendinis telonia, flumina, ponies,
Id quoque quod* Fodrum vulgari nomine dicunt,
Et capitolicium certo sub tempore censum :
HSPC Ligures sacro tribuerunt omnia fisco.
Hsec et siqua pari fuerunt obnoxia juri,
Pntlati, proceres, missisque potentibus urbes
Libera Romano reliqueruut omnia regno.

But the 'jus regium,' what it is in the consent of nations,
who please may see in Aristotle's ' Politics,' lib. iii. et iv.; in
Polybius, lib. vi.; Herodotus in ' Euterpe ;' in Halicarnassaeus,
lib. iv. v. vii.; in Valerius Maximus.lib. vii. ; in ' Orat. qua sua-
det Concordiam Patrum et Plebis in fin.' in Tacitus 4. Annal.;
in Suetonius in Tiberio, c. xxx.; in Dion. lib. liii.; and in the
later politics, Fabius Albergatus, Zimara, Bodinus, Aretinus,
and generally in the commentators upon Aristotle.

i Lib.i. ff. de Constitut Princip. et sect. Sed et quod Principi. Institut. de Jure
Natur. et. praef. pandect, lib. i. fl'. de Offic. pr*f. praet. et Cod. de ret. Jur. enucle-
and. lib. i. sect. Sed et hoc. * Lib. viii. * Fodder.



448 OF SUPREME CIVIL POWERS,

17. (2.) It consists in the king's immunity from obligation
to some solemnities of law to which his subjects are obliged.
" Ratum esse actum, etiamsi actio non habeat plenam recti-
tudinem, dum jus non desit," say the lawyers. Of which
nature is that for which ^Eneas Sylvius, b afterward Pope
Pius II., laughed at Henry VI. of England, that his public
instruments had no test but his own, and he wrote * Teste me-
ipso, Witness ourself :' in which the king doth imitate the
King of kings, of whom St. Austin says, " Testem se dicit



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